Are Liberals Coming Out of the Closet on the Constitution?

We have written many times about the Progressive movement and its open hostility toward both the Constitution and the Declaration of Independence. We have also noted that modern progressives have generally had the good political sense to keep their opinions about the Constitution to themselves, beyond whatever critique is implicit in terming it a “living” document that is liable to call forth previously unknown “rights” at any moment.
Today’s New York Times editorializes on the Republican takeover of the House. You could paraphrase the editorial as “wah-wah-wah;” the paper basically cries over its party’s November defeat. But in the course of doing so, the editorialists are surprisingly open about their contempt for the Constitution:

A theatrical production of unusual pomposity will open on Wednesday when Republicans assume control of the House for the 112th Congress. A rule will be passed requiring that every bill cite its basis in the Constitution. A bill will be introduced to repeal the health care law. On Thursday, the Constitution will be read aloud in the House chamber.
Those who had hoped to see a glimpse of the much-advertised Republican plan to revive the economy and put Americans back to work will have to wait at least until party leaders finish their Beltway insider ritual of self-glorification. Then, they may find time for governing.

Needless to say, the Times did not adopt a similarly surly attitude in January 2007, when Nancy Pelosi took over the helm in the House. The editorial continues:

The empty gestures are officially intended to set a new tone in Washington, to demonstrate — presumably to the Republicans’ Tea Party supporters — that things are about to be done very differently. But it is far from clear what message is being sent by, for instance, reading aloud the nation’s foundational document. Is this group of Republicans really trying to suggest that they care more deeply about the Constitution than anyone else and will follow it more closely?

Well, yeah. Actually paying attention to the Constitution would be a change. But now the Times shows its true colors:

In any case, it is a presumptuous and self-righteous act, suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation. Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.

Presumptuous to read the Constitution out loud? Seriously? And, in fact, the founders didn’t leave the Constitution “open to generations of reinterpretation;” they provided for the document to be changed by amendment. But most revealing is the Times’ hauling out the old three/fifths chestnut, much beloved by liberals who despise the Constitution. Never mind that the point of that provision, insisted upon by representatives of the free states, was to limit the influence of pro-slavery states in the House. This is, actually, a good illustration of how the Constitution has changed through amendment rather than “reinterpretation.” Once the slaves were freed during and after the Civil War, the 14th Amendment provided that the House would be “apportioned among the several States according to their respective numbers, counting the whole number of persons in each State….” So the paper’s snarky aside is entirely misplaced.

There is a similar air of vacuous fundamentalism in requiring that every bill cite the Constitutional power given to Congress to enact it.

Contemplate that phrase for a moment–”vacuous fundamentalism.” So citation of Constitutional authority is “fundamentalism?” And why is it “vacuous” for legislators to consider whether proposed legislation does, in fact, have a basis in the Constitution? Isn’t this one of their most basic duties?

The new House leadership says this is necessary because the health care law and other measures that Republicans do not like have veered from the Constitution. But it is the judiciary that ultimately decides when a law is unconstitutional, not the transitory occupant of the speaker’s chair.

Maybe instead of jeering at the Constitution, the Times editors should read it. Nowhere does it say or imply that constitutionality is the sole concern of the judicial branch. On the contrary, the Constitution gives the judiciary no special role with respect to determining the Constitutional validity of legislation or executive actions. Article I says, further, that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This places a clear duty on Congress to determine that the legislation it enacts is consonant with the “Powers vested by this Constitution in the Government of the United States.”

The Republicans’ antics are a ghastly waste of time at a moment when the nation is expecting real leadership from Congress, and suggest that the new House leadership is still unable to make tough choices. Voters, no less than drama critics, prefer substance to overblown theatrics.

It’s nice to see that the Times has such a sense of urgency, but I don’t think the paper needs to worry. Reading the Constitution will take considerably less time than the near-filibuster that Nancy Pelosi delivered before handing the House gavel over to Speaker John Boehner. The Republicans will be on to substance soon enough. I doubt, however, that will make the Times editorialists any happier than contemplating the Constitution does.